OPINION | Selby Makgotho: South Africa's ICC impasse

President Cyril Ramaphosa and Russian president Vladimir Putin meeting on the sidelines of a G20 summit. [Photo: GCIS]

Vladimir Putin's acceptance of an invite to attend the BRICS summit in Durban in August has created an impasse for South Africa in relation to its obligations to the ICC, writes Selby Makgotho.

The confirmation that Russia's President Vladimir Putin has accepted an invite to attend the 15th BRICS summit in Durban later this year has again triggered the debate on South Africa's participation in the International Criminal Court (ICC).

The ICC earlier this year issued a warrant of arrest for Putin and Maria Alekseyevna Lvova-Belova, the Commissioner for Children's Rights in his office, on the allegations that they were responsible for the war crime of unlawfully deporting children from Ukraine to Russia.

The ICC alleges it has reasonable grounds to believe that Putin bears individual criminal responsibility as he failed to exercise proper control over civilian and military subordinates who committed the acts.

The international warrant of arrest was issued after he had already received his invitation to the BRICS summit. As a signatory to the ICC, other members of the body expect South Africa to exercise its treaty obligations by arresting Putin and handing him over.

Al Bashir mess 

In fact, South Africa is among the first countries in the world to sign and ratify the Rome Statute. The developments come in the wake of the 2015 visit by former Sudanese president Omar Al-Bashir, who came to South Africa to attend an African Union meeting.

At the time, there was a warrant of arrest for Al-Bashir for genocide and war crimes. South Africa became the centre of attention as it could not execute the arrest.

Al-Bashir was assisted to leave the country, a decision that drew the ire of the courts and civil society movements in South Africa and around the world.

Flowing from the Al-Bashir controversy, South Africa threatened to withdraw from the ICC on the basis that the body was incompatible to peace efforts on the African continent, and there were insufficient reforms and safeguards to protect African leaders.

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Attempts to withdraw were thwarted when the courts described South Africa's actions as "invalid and unconstitutional" on the basis that its actions stood in stark contrast with its international treaty obligations as a member state and signatory to the ICC Statute.

South Africa, at the time, wanted to follow in the footsteps of Burundi, which withdrew from the ICC for similar reasons. While the debate rages on, it should be borne in mind that Article 127 of the ICC stipulates that, if the country intends to withdraw, it must serve a one-year notice before being discharged from its treaty obligations.

The withdrawal, if any, will not affect any cooperation with the ICC in connection with criminal investigations and proceedings. If South Africa decides, at some point, to withdraw, it still has a duty to assist the ICC on matters under investigation prior the commencement of the withdrawal notice.

Malabo Protocol 

The issue on whether to withdraw or not came under the spotlight in the wake of the Putin's pending attendance to the summit.

In its 55th National Conference, the ANC resolved that South Africa must rescind the withdrawal from the ICC and intensify its lobbying for the ratification of the Malabo Protocol. The Malabo Protocol calls for the establishment of the African Court of Justice and Human Rights.

Article 46A of the Malabo Protocol grants immunity from prosecution to sitting heads of state and other senior officials. This is the prominent and defining feature of the Protocol, in that it stands in opposition to the ICC's posture on the immunity granted to heads of state.

The Malabo Protocol reflects region-specific crimes which have profound socio-economic and political consequences on the continent. The fundamental difference between the ICC and the Malabo Protocol on immunity for heads of state is that the former does not consider the immunity of state officials as a valid defence for the commission of international crimes.

In contrast, the latter provides that heads of state and other senior officials are granted immunity during their tenure of office. The jurisdiction of the Malabo Protocol enables it to try genocide, crimes against humanity, war crimes and the crime of aggression. 

The latest development comes in the wake of the parliamentary withdrawal of the International Crimes Bill by South Africa. The bill would have resulted in the repeal of the Implementation Act of the Rome Statute and ultimately enabled a withdrawal from the ICC.

The bill aimed to protect sitting heads of state or any other state officials from prosecution for international crimes by granting them immunity.

South Africa believes that, if it remains in the ICC, it can actively take part in the ICC's reforms.

It, therefore, remains largely to be seen how South Africa will carry out its treaty obligations in the wake of the pending Putin visit, as it has decided to remain in the ICC. 

- Selby Makgotho is a legal commentator and a PhD candidate in Public Constitutional and International Law at Unisa.

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